Update 6/3/21: New York State has adopted the Centers for Disease Control and Prevention’s May 13 “Interim Public Health Recommendations for Fully Vaccinated People” for most businesses and public settings. Employers are strongly encouraged to consult with counsel about compliance obligations under this new guidance and interaction with obligations under the NY HERO Act.
Updated 5/10/21: New York Governor Cuomo signed the HERO Act into law on May 6, 2021.
On April 23, 2021, the New York legislature passed the Health and Essential Rights Act (“HERO” or “Act”), which aims to protect workers and the public from the risks posed by COVID-19 and other airborne infectious diseases by requiring employers to implement specific workplace health and safety standards. The Act is expected to be signed by Governor Cuomo in the coming weeks. Most provisions of the Act will become effective 30 days after it is signed into law.
- The HERO Act requires employers to implement an infectious disease prevention plan, either by adopting the model plan (which will be established by the New York Department of Labor) or by designing their own plan that meets or exceeds the model standards and is developed in conjunction with employees.
- Employers must provide the airborne infectious disease exposure prevention plan to employees upon the effective date of the law, upon hire, upon request, and after reopening due to an airborne infectious disease. In addition, employers must post the plan at worksites and must include the plan in any employee handbook.
- Under the HERO Act, employers must allow employees to establish and administer a joint labor-management health and safety committee that will be tasked with raising health and safety issues and evaluating workplace health and safety protocols.
Airborne Infectious Disease Exposure Prevention Plan
The HERO Act requires employers with a New York worksite to implement an airborne infectious disease exposure prevention plan (“prevention plan”), either by adopting the model standard or by establishing an alternative plan that equals or exceeds the model standard.
The New York Department of Labor (NYDOL) is tasked with creating industry-specific model standards that establish minimum requirements for preventing airborne infectious diseases in the workplace. At a minimum, the standards must establish requirements on procedures and methods for:
- Employee health screenings;
- Face coverings;
- Required personal protective equipment (PPE) applicable to each industry (e.g., protective clothing, respiratory devices, and protective shields and barriers), which must be provided at the expense of the employer;
- Accessible workplace hand hygiene standards and requirements for employers to provide adequate break times for workers to use handwashing stations;
- Regular cleaning and disinfecting of shared equipment and frequently touched surfaces (e.g., workstations, touchscreens, telephones, handrails, doorknobs) and all surfaces and washable items in other high-risk areas (e.g., restrooms, dining areas, breakrooms, locker rooms, vehicles, sleeping quarters);
- Effective social distancing for employees and customers, including options for social distancing (e.g., signs or markers, increasing physical space between workers, limiting capacity of customers, reconfiguring spaces, implementing flexible hours);
- Compliance with mandatory or precautionary orders of isolation or quarantine;
- Compliance with applicable engineering controls, such as proper air flow and exhaust ventilation;
- Designation of one or more supervisory employees to enforce compliance with the prevention plan and any other federal, state, or local guidance; and
- Compliance with applicable laws, standards, or guidance for notifying employees of a potential exposure to an airborne infection disease at a worksite.
If an employer does not adopt the model standard, the employer must develop a prevention plan with the meaningful participation of employees (or collective bargaining representative, if any), that is tailored to the specific industry and worksites of the employer.
Distribution of the Prevention Plan
The HERO Act requires employers to provide the prevention plan in the following ways:
- In writing: Employers must provide the prevention plan to employees in writing upon the effective date of the HERO Act, upon hire, upon request, and upon reopening after a period of closure due to an airborne infection disease. The prevention plan must be provided in English and the language identified by each employee as their primary language.
- Worksite Posting: Employers must post the prevention plan in a visible and prominent location within each worksite.
- Employee Handbook: If an employer provides employee handbooks to their employees, they must include the prevention plan in its handbook.
- Upon Request: Employers must make the plan available to all employees, independent contractors, employee representatives, collective bargaining representatives, the NYDOL, and the Department of Public Health, upon request.
Joint Health and Safety Committees
Under the Act, employers must allow employees to establish and administer a joint labor-management workplace safety committee, two-thirds of which must be comprised of non-supervisory employees. The workplace safety committee shall be authorized to, but are not limited to, perform the following tasks:
- Raise health and safety concerns, complaints, and violations to which the employer must respond;
- Review policies in place required under the HERO Act or workers compensation law and provide feedback;
- Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, regulation, or other directive;
- Participate in any site visit by any government entity responsible for enforcing safety and health standards;
- Review any report filed by the employer related to the health and safety of the workplace; and
- Regularly schedule a meeting during work hours at least once per quarter.
The workplace safety committee provisions of the Act will become effective 180 days after the law is signed.
Penalties for Non-Compliance
Employers who fail to comply with provisions of the HERO Act may be subject to the following penalties:
- Civil penalties imposed by the NYDOL of no less than $50 per day for the failure to adopt a prevention plan and between $1,000 – $10,000 for the failure to abide by an adopted prevention plan (civil penalties increase if the NYDOL finds the employer has violated the Act in the preceding 6 years).
- The NYDOL may order other appropriate relief, including enjoining the conduct of any person or employer.
- Employees may bring civil suit seeking injunctive relief against an employer for alleged violations of the prevention plan that causes a substantial probability of death or serious physical harm. A Court may award a prevailing employee up to $20,000 in liquidated damages and reasonable attorney’s fees, unless the employer proves that they had a good faith basis to believe the established health and safety measures complied with the applicable airborne infectious disease standards.
Prohibition Against Retaliation
Employers are prohibited from discriminating, threatening, retaliating, or taking adverse action against employees for exercising their rights under the HERO Act or under a prevention plan, reporting violations of the HERO Act or a prevention plan, participating in the workplace safety committee, or refusing to work when they believe in good faith that such work exposes them to an unreasonable risk of exposure to an airborne infection due to working conditions that do not meet the HERO model standards or other governmental standards (provided that the employer is notified of, or should be aware of, inconsistent working conditions and the employer fails to cure the conditions).
Once the Act is signed into law, employers with New York worksites must implement a prevention plan that complies with the NYDOL model standards. Employers should wait for the publication of the model standards and adopt those standards or implement standards that meet or exceed the model standards. Once a plan is adopted, employers must distribute the prevention plan to employees, post the plan at worksites, and include the plan in any employee handbook. Employers should also be prepared to accommodate a workplace safety committee in accordance with the Act.
Sequoia’s Return to Work: Now more than ever, employers need to be careful to monitor and protect against the potential of COVID-19 at the workplace. The New York requirements demonstrate the potential for employers to have additional legal exposure, which is why it is best to have clear return to work policies and COVID-19 tracking mechanisms in place. The tracking and resource capability of Sequoia’s Return to Work Center can provide a streamlined solution to address these new challenges and help your business more confidently stay compliant. Please reach out to your Sequoia Client Service team, or connect with them directly in HRX, to learn more about how Return to Work Center can assist you to stay compliant.
- Health and Essential Rights Act (“HERO” Act)